Raising the Bar: Will Courts Up Their Game on Fair Trial Rights After Semenya and RFC Seraing?

[Martina Coxová is a PhD candidate at the Faculty of Law of Charles University in Prague]

On 10 July 2025, the Grand Chamber of the European Court of Human Rights (ECtHR/ Court) ruled in Semenya v. Switzerland that Switzerland had violated Caster Semenya’s right to a fair trial under Article 6(1) ECHR, following a Court of Arbitration for Sport (CAS) award upheld by the Swiss Federal Tribunal. The case concluded years of litigation for the  South African elite middle-distance runner, who had been subjected to controversial “differences of sex development” (DSD) regulations governing her eligibility to compete (see here for a blog symposium dedicated to the case). This judgment signals the Court’s willingness to subject compulsory arbitration to more rigorous scrutiny under Article 6(1) of the ECHR. Although the case arose in the context of compulsory sports arbitration, the finding that a “particularly rigorous examination” must be applied when arbitration is the de facto compulsory dispute resolution method may signal a shift in how fair-trial rights are safeguarded (para. 209). Like athletes facing powerful sports governing bodies, non-staff personnel of international organizations often lack real bargaining power and must accept arbitration clauses as their only avenue of recourse.

The Semenya case is not unique. When considered alongside the Human Rights Committee’s (HRC) views in MLD v. Philippines and the Court of Justice of the European Union (CJEU) ruling in Royal Football Club Seraing SA v. FIFA on effective judicial review of arbitral awards, a general trend appears to be emerging. Courts and treaty bodies are increasingly requiring greater protection of fundamental rights and closer scrutiny of whether alternative remedies genuinely safeguard fair trial standards.

These developments prompt a key question: should the “reasonable alternative means” standard established by the ECtHR in Waite and Kennedy v. Germany over 25 years ago still hold sway when balancing international organization immunity against access to justice? Drawing a parallel between the position of athletes and non-staff personnel of international organizations, this post argues that these three cases collectively mark a turning point in how courts may interpret and apply the Waite and Kennedy standard going forward.

The Baseline to Date – Waite and Kennedy

International organizations are generally considered to require jurisdictional immunity to perform their functions effectively. The legal basis for this can be found in treaty law, such as Article 105 of the UN Charter, in customary international law, and in the 1946 and 1947 conventions on the privileges and immunities of the United Nations and specialised agencies, as well as in various headquarters agreements.  As a result, disputes involving international organizations are generally excluded from the jurisdiction of national courts.

The ECtHR first outlined the “reasonable alternative means” test in 1999 in Waite and Kennedy, reaffirming this approach later the same day in Beer and Regan v. Germany.According to this reasoning, an organization’s immunity may be upheld so long as it provides an alternative means of dispute resolution deemed adequate. Courts have since often relied on this standard, albeit with differing levels of engagement, when reviewing whether to uphold the jurisdictional immunity of an international organization.

Yet, as Prof. Luca Pasquet has highlighted, national courts applying this test have rarely explored whether such remedies actually adequately satisfy the rule of law and human rights guarantees.  This may often be attributed to practical limitations, including limited access to information or concerns regarding judicial efficiency. Consequently, once courts ascertain that an alternative forum or means of resolution is available, immunity is typically upheld, regardless of how effective that alternative may actually be. This deferential approach has shaped jurisprudence on the immunity of international organizations over the past 25 years.

Deference and Missed Opportunities

Since the Waite and Kennedy standard for assessing organizations’ immunity was first articulated, it has been applied with varying outcomes, as seen in the courts’ jurisprudence (Pasquet, 2021). For example, in Klausecker v. Germany, the ECtHR found a complaint against the European Patent Organisation inadmissible, reasoning that access to the ILO Administrative Tribunal (ILOAT) constituted a sufficient alternative. The Court did not, however, inquire into the adequacy of the Tribunal’s procedures in practice.

A more recent (half) step forward came with the HRC’s views in MLD v. Philippines, brought by a former employee of the Asian Development Bank (ADB). This was the first time a universal human rights body addressed the issue of immunity for international organizations vs. an individual’s right of access to justice. The HRC reiterated that organizations must provide adequate alternative remedies along the lines of Waite and Kennedy, yet stopped short of assessing whether the ADB Administrative Tribunal genuinely met the requirements of Article 14 of the ICCPR. More controversially, the HRC implicitly accepted that disputes involving international civil servants may be subject to a lower standard of protection. This reasoning, however, appears to contradict the human rights framework set out in the ICESCR. General Comment No. 23 (2016) makes clear that the right to just and favourable conditions of work is a right for everyone, irrespective of their contractual status or the sector involved (para. 5). Although the ICESCR establishes obligations for states, not directly for international organizations, it is difficult to justify granting international civil servants or non-staff personnel working for such organizations a lower standard of protection than that afforded to other workers, particularly in relation to fair trial rights.

In both instances, immunity was upheld as an alternate forum was deemed available, albeit without thoroughly examining whether it provided meaningful guarantees for a fair trial. These cases illustrate a form of judicial restraint which, while theoretically consistent with the Waite and Kennedy standard, in practice misses the opportunity to critically evaluate its adequacy purposefully and, as a result, does not effectively protect fundamental rights.

Raising the Bar – Semenya and RFC Seraing

The two recent cases, Semenya v. Switzerland and RFC Seraing, mark a potential shift away from such judicial deference. In Semenya, the ECtHR found that Switzerland violated Article 6(1) ECHR because the Tribunal’s public-policy review of the CAS award did not meet the required degree of review in cases of de facto compulsory arbitration (paras 230-233).  Notably, the ECtHR held that in cases of compulsory arbitration, domestic courts must apply a “particularly rigorous examination” of fair trial guarantees.

Although arbitration clauses in sports are generally consensual, the ECtHR reaffirmed its decision in Mutu and Pechstein that, in practice, given the “vertical axis” of authority and the resulting “structural imbalance” (Semenya, paras. 200-209), athletes effectively have no real choice and are in a significantly weaker position. In this respect, a parallel could be drawn to non-staff personnel of international organizations who, excluded from access to international administrative tribunals, are often compelled to accept arbitration clauses in their contracts. Although in theory they may “negotiate” the terms of their contract, in practice this is not common (as also reflected by the large number of cases brought before and dismissed for lack of jurisdiction by these tribunals).

In RFC Seraing, the CJEU underscored that where rules impose mandatory and exclusive arbitration, national courts must be able to exercise effective judicial review. That review must allow them to ensure compliance with EU public policy, including competition law (Articles 101–102 TFEU) and, where necessary, to make preliminary consultations under Article 267 TFEU. The case, brought by a Belgian football club challenging a CAS award, also raised questions of res judicata and the treatment of foreign (non-EU) arbitral awards. Critically, the CJEU linked this obligation to Article 47 of the EU Charter: national courts must therefore guarantee effective judicial protection by conducting an in-depth review where fundamental rights are at stake. Note the CJEU also held that this standard applies across all fields of EU law, not just competition law.

Implications for International Organizations

Taken together, Semenya and RFC Seraing represent concurrently a shift and convergence between Strasbourg and Luxembourg: both courts now appear to require a more in-depth review of compulsory arbitration when fundamental rights are implicated. This trend could represent a notable shift from the deferential Waite and Kennedy standard, largely applied to date, and could mark a turning point in balancing the immunity and accountability of international organizations. While these decisions do not override Waite and Kennedy, they may serve as an important impetus for courts to assess adequacy more rigorously, particularly in cases involving access-to-justice questions where arbitration is effectively mandatory and avenues for review are limited.

Such a move would affect not only the immunity of international organizations but also the positions of their employees and private parties. It could bring the adjudication of disputes by internal administrative tribunals and appeal boards, and the use of arbitration clauses in such employment contracts, under closer scrutiny. If these mechanisms fail to withstand more rigorous review, the coherence and legitimacy of an organization’s internal justice system may be called into question. This could open broader avenues of justice for both non-staff personnel of these organizations and private parties (for example, vendors, local communities, or external partners) who have, up to now, largely been sidelined. At the same time, national courts could be compelled to engage more substantively with immunity challenges. The result would be expanded access to justice for individuals in disputes with international organizations and an important step toward greater accountability of these organizations.

Conclusion

The extent to which these cases will affect the way courts assess immunities of international organizations remains to be seen. Yet, they still provide grounds for cautious optimism – a potential shift towards a more robust protection of fair trial rights and accountability for international organizations. While this change may appear incremental at first, it signals a potentially significant step forward – one that could raise the bar and redefine the balance between international organizations’ functional autonomy and their duty to respect their workers’ fair trial rights. If Waite and Kennedy defined the past twenty-five years, the question now is how Semenya and RFC Seraing will help shape the upcoming years.